Insights: Update on EU patent protection and Brexit

There is no “one size fits all” approach to Brexit. We recommend discussing strategies with your usual advisor.

Only a few areas of UK patent law come from EU legislation. One area is supplementary protection certificates (SPCs). With a possible Brexit date of 29 March 2019, the UK Government has now published guidance on what they consider to be the fall-back position of a “no deal” scenario. They have now stated that the EU’s legislation on SPCs will be kept in UK law. This law, along with existing provisions in UK patents legislation will form the UK’s own SPC regime on Brexit if there is no deal. Likewise, the UK Government have stated that all other EU legislation relevant to biotechnology patents and applications, compulsory licensing arrangements, and exceptions from infringement for the testing of pharmaceutical products will be kept in UK law.

Another area commented on by the UK Government is the Unified Patent Court (UPC). If the UPC is ratified and comes into force before Brexit then the UK Government have now reaffirmed that they will explore whether it would be possible for the UK to remain within the UPC and unitary patent systems. However, under this scenario it is still possible that the UK might need to withdraw from one or both systems. If the UPC does not come into force before Brexit then there would be no change in UK law on 29 March 2019. However, under this scenario it is still unclear whether the UPC and its governing agreements would need to be amended before the UPC could come into force.

Brexit will have no effect on the UKs dealings with the European Patent Office. UK businesses can continue to apply to the European Patent Office for patent protection which will include the UK. Existing European patents covering the UK are also unaffected.

Background and detail

On 23 June 2016, the UK voted by referendum, narrowly, to leave the EU (“Brexit”).

On 24 September 2018, the UK Government’s Department for Business, Energy & Industrial Strategy issued guidance on their position in the case of a “no deal” Brexit including as it relates to patents and the Unified Patent Court.